Madhya Pradesh High Court
National Insurance Company vs Smt. Sunita Markam on 11 July, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11th OF JULY, 2022
MA-01881-2021
Between:-
NATIONAL INSURANCE COMPANY LTD. THR.
OFFICER INCHARGE NATIONAL INSURANCE
COM PAN Y LTD. DIVISIONAL OFFICE NO.2,
OPPOSITE JAYANTI COMLEX, JABALPUR T.B.
HUB VIJAY NAGAR JABALPUR MP (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI DIWAKAR NATH SHUKLA, ADVOCATE)
AND
1. SMT. SUNITA MARKAM W/O LATE SHRI
SURESH MARKAM , AGED ABOUT 30 YEARS,
OCCUPATION: KNITTING R/O CHAITANYA CITY
TILHARI DISTT, JABALPUR (MADHYA
PRADESH)
2. ABHISHEK MARKAM S/O LATE SHRI SURESH
MARKAM , AGED ABOUT 13 YEARS,
OCCUPATION: MINOR THR. GUARDIAN
MOTHER SMT. SUNITA MARKAM R/O
CHAITANYA CITY TILHARI DISTT, JABALPUR
(MADHYA PRADESH)
3. DILENDRA MARKAM S/O LATE SHRI SURESH
MARKAM , AGED ABOUT 8 YEARS,
OCCUPATION: MINOR THR. GUARDIAN
MOTHER SMT. SUNITA MARKAM R/O
CHAITANYA CITY TILHARI DISTT, JABALPUR
(MADHYA PRADESH)
4. VIRENDRA SINGH JAAT S/O PHOOL SINGH
J A A T NAGAR PALIKA COLONY MOHGAON
BIRSA PS MALAJKHAND (MADHYA PRADESH)
(DRIVER FIRE BRIGADE MP 50 L 0135)
Signature Not Verified
SAN
5. CHIEF MUNICIPAL OFFICER NAGAR PALIKA
Digitally signed by TULSA SINGH
Date: 2022.07.12 19:33:25 IST OFFICE MALAJKHAND TEH. BAIHAR (MADHYA
PRADESH) (OWNER FIRE BRIGADE MP 50 L
2
0135)
.....RESPONDENTS
(BY SHRI ABHISHEK SINGH, ADVOCATE FOR RESPONDENT
NO.1)
(BY MS. C. VEDA RAO, ADVOCATE FOR RESPONDENT NO.5)
MISC. APPEAL No. 1881 of 2021
Between:-
NATIONAL INSURANCE COMPANY THR.
OFFICER INCHARGE NATIONAL INSURANCE
COMPANY DIVISIONAL OFFICE NO.2, OPPOSITE
JAYANTI COMLEX, JABALPUR T.B. HUB VIJAY
NAGAR JABALPUR MP (MADHYA PRADESH)
.....PETITIONER
(BY SHRI DIWAKAR NATH SHUKLA, ADVOCATE)
AND
1. SMT. SUNITA MARKAM W/O LATE SHRI
SURESH MARKAM , AGED ABOUT 30 YEARS,
R/O CHAITANYA CITY TILHARI DISTT,
JABALPUR (MADHYA PRADESH)
2. VIRENDRA SINGH JAAT S/O PHOOL SINGH
JAAT OCCUPATION: NOT MENTION NAGAR
PALIKA COLONY MOHGAON BIRSA PS
MALAJKHAND, DISTT. BALAGHAT (MADHYA
PRADESH)
3. CHIEF MUNICIPAL OFFICER NAGAR PALIKA
OFFICE MALAJKHAND TEH. BAIHAR, DISTT.
BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ABHISHEK SINGH, ADVOCATE FOR RESPONDENT
NO.1)
(BY MS. C.VEDA RAO, ADVOCATE FOR RESPONDENT NO.3)
This appeal coming on for hearing on admission on this day, the court
passed the following:
Signature Not Verified
ORDER
SAN
These two appeals i.e. M.A. No.1880/2021 & M.A. No.1881/2021
Digitally signed by TULSA SINGH
Date: 2022.07.12 19:33:25 IST
have been filed by the Insurance Company being aggrieved of award dated
12/12/2019 passed in Claim Case Nos.805/2016 and 804/2016 respectively on
the ground that offending vehicle bearing registration No.M.P.-50-L-0135
owned by Chief Municipal Officerr, Municipal Office, Malajkhand and used as
fire brigade was not having fitness on the date of accident which took place on
27/12/2015.
2. The only question which has been raised in these appeals is that
whether in absence of a fitness though it is admitted that the said vehicle was
having valid permit to ply, Insurance Company should have been exonerated or
not.
3. Shri Shukla, learned counsel for the appellant, has placed reliance on
the Constitution Bench judgment of Kerala High Court at Ernakulam in the case
of Pareed Pillai Vs. Oriental Insurance Co. Ltd., 2018 SCC Online Ker
3543 to suggest that in absence of fitness and permit vehicle was not permitted
to ply on public road.
4. Shri Shukla has also drawn attention of this Court to Section 86 of the
Motor Vehicles Act, 1988 which provides for cancellation and suspension of
permit under certain exigencies and submits that in absence of a valid fitness,
permit will deem to have been cancelled, therefore, Insurance Company should
have been exonerated.
5. Shri Abhishek Singh and Ms. C. Veda Rao, learned counsel for the
respondents, in their turn, submits that the judgment in the case of Pareed
Pillai (supra) is distinguishable on its facts.
6. Admittedly, the offending vehicle was used by CMO, Nagar Palika as
Signature Not Verified
fire brigade.
SAN
Digitally signed by TULSA SINGH
7. Section 66 of the Motor Vehicles Act, 1988 deals with control of
Date: 2022.07.12 19:33:25 IST
transport vehicles. It provides for necessity for permits. It is further submitted
that sub-section (3) of Section 66 in clause-(c) makes an exception to the
necessity of having permit inasmuch as any transport vehicle used solely for
Police, Fire Brigade or Ambulance purposes is exempted. This distinguishes
the law laid down by Constitution Bench of Kerala High Court in the case of
Pareed Pillai (supra). Even otherwise provisions contained in Section 86 do
not come into operation automatically. There is a proviso below Sub-section
(1) of Section 86 providing that no permit can be suspended or cancelled unless
an opportunity has been given to the holder of the permit to furnish his
explanation.
8. In the present case, admittedly, till the accident took place, permit was
not cancelled and even otherwise permit is not mandatory for a fire brigade as is
apparent from clause-(c) of sub-section (3) of Section 66 of Motor Vehicles
Act, 1988 and once it is held that permit is not mandatory, then the issue of
fitness on which permit depends, becomes secondary. Even there is no
condition in the insurance policy laying down that absence of fitness will be a
ground to repudiate the policy. Therefore, when these facts are cumulatively
taken into consideration, then appeals are, admittedly, devoid of merit inasmuch
as there is an exception in clause-(c) of sub-section (3) of Section 66 of Motor
Vehicles Act and so also in light of the judgment of the Indore Bench of this
Court in the case of Oriengal Insurance Co. Ltd. Vs. Manoj and others,
2013 SCC Online MP 10886.
9. Accordingly, both these appeals fail and are hereby dismissed.
Signature Not Verified
SAN
(VIVEK AGARWAL)
JUDGE
Digitally signed by TULSA SINGH
Date: 2022.07.12 19:33:25 IST
ts
Signature Not Verified
SAN
Digitally signed by TULSA SINGH
Date: 2022.07.12 19:33:25 IST
